Weekly Notes: legal news from ICLR – 20 May 2016

Posted on 23rd May 2016 in Weekly Notes

This week’s roundup of legal news and commentary includes smoke’n’mirrors, smoke without fire (or the absence thereof), smoke in plain packaging, and a trade mark relating in a roundabout way to smoke on the water. Plus a veritable Queen’s peach of a legislative programme and other offerings from the fruitbowl of news. Best enjoyed with coffee or tea and a sense of humour.

 

Queen’s Speech 2016

The Queen delivers her speech at the Houses of Parliament.

Will the Government be driving a coach and horses through the Human Rights Act? (see below)

 

Highlights and commentary

This week the Queen’s officially opened the new session of Parliament, giving a speech setting out her government’s legislative priorities. This included

  • a Digital Economy Bill (giving every household a legal right to a fast broadband connection);
  • a Neighbourhood Planning and Infrastructure Bill (which seems to be trying to square the circle between involving local communities more in planning decisions and speeding up the planning process to enable more houses to be built);
  • a Modern Transport Bill (encouraging use and insurance of driverless cars and manned space flight),
  • a Local Growth and Jobs Bill (giving local authorities full control of the money they raise through business rates).

Of particular interest to the legal community were the proposals for

  • A Prison and Courts Reform Bill (promising to “bring about the biggest reform of our prisons since Victorian times”)
  • A Counter-Extremism and Safeguarding Bill (giving law enforcement agencies new powers to prevent people being brainwashed and radicalised by extremists)
  • A Criminal Finances Bill (to help fight international corruption)
  • A Policing and Crime Bill (to continue the modernisation of the police)
  • A Children and Social Work Bill (to speed up adoption procedures and make improvements in provision for cared-for children) 
  • An Intellectual Property Bill (to deal with unjustified threats of litigation and to improve the resolution of IP disputes without having to go to court)

There were also a couple of familiar items which, like poorly performing students required to resit their examinations after repeating a year, hung about looking sheepish at the back of the roll call:

1. The Investigatory Powers Bill (designed to “give law enforcement agencies the tools they need to protect the public in the digital age”) and –

Drum roll please –

2. “Proposals will be brought forward for a British Bill of Rights.”

Why the drum roll? Well, because this much-loved old stager is a bit of a favourite with the illexerate public and the tabloid reviewers, but tends to be booed off  stage whenever it appears before an audience of legal minds.

The essential point about this British Bill of Rights is not what it is, but what it isn’t, viz the Human Rights Act 1998. That was a Labour enactment, but was widely supported, because it enabled UK courts to determine issues which had previously had to await a ruling from the European Court of Human Rights in Strasbourg. In a sense, it brought human rights jurisprudence onshore to Britain, which is where you’d expect the supporters of the British Bill of Rights to want it to be, determined by our own courts, and ensuring that the rights conferred by the European Convention (drafted by British common lawyers in the aftermath of World War II) were applied by our own courts alongside the best traditions of the English common law.

But no. The critics of the HRA seem to regard it as a form of foreign interference with a domestic system based on “common sense” and now wish to Brexit from jurisprudence of the very convention our own lawyers set in train. The HRA seems to have heralded an era of exceptional criticism of our own judiciary by both media and politicians, egging each other along, with each displaying an alarming ignorance of the actual nature and effect of the provisions which the courts – pursuant to domestic British legislation – are obliged to apply.

To its critics, the idea of simply repealing the hated HRA and replacing it, even with a largely identical piece of legislation, might have the merit of rebranding it. (That would really be a pretty blatant piece of smoke’n’mirrors conjuration, but perhaps an acceptable fudge in the circumstances.) The problem is, they want to go further, and recalibrate the rights, in some cases limiting entitlement to them, in a way which undermines the whole spirit of the Convention on which they’re based – viz that human rights are universal.

Among the many problems the repealers have encountered, despite successive consultations and much no doubt agonised cogitation, is that the HRA cannot be replaced without unpicking and unravelling a series of later constitutional developments, such as the Good Friday Agreement and devolutionary measures in Northern Ireland, Scotland and Wales. This is like removing and replacing the ground floor of a building without disturbing the first and second floors. Perhaps it can be done, but no one seems to have worked out how. And so, each year, the vain ambition is trotted out in the Queen’s Speech, and each year the scrumpled up sheets of paper on which attempts have been made to draft the proposed bill gather in heaps on the drafting room floor. One year, the queen will simply let her eyes drift over it and forget to pronounce the latest version of the relevant wording and it will be apparent that the doomed measure has met its fate.

For other, more expert, commentary on the Queen’s Speech proposals, see:

Case law

Two big cases in the news this week together prove the notion that while there’s no smoke without fire, the source of any smoke must be contained within anonymous packaging.

PJS v NGN [2016] UKSC 26

The Supreme Court (by a majority of 4 to 1) allowed an appeal by the claimant (in plain packaging), PJS, reversed the decision of the Court of Appeal on 18 April, and restored that of the trial judge back in January, imposing an interlocutory injunction (ie an order pending trial) restricting any publication of information identifying PJS or his family, in relation to a story about his consensual extramarital sexual activity.

The decision was widely criticised by the defendant newspaper, its editors, the editors of its sister newspapers and various journalists employed by those and other papers who desperately wanted to publish all the salacious details of a juicy (or at any rate oily) story which the Supreme Court said was of no or insufficient public interest to justify overriding the participants’ right to privacy.

Much of the criticism was directed to the fact, spelt out in Lord Toulson’s dissenting judgment, at [86], that the “the story’s confidentiality has become so porous that the idea of it still remaining secret in a meaningful sense is illusory”. That was because details had been reported in other jurisdictions and been published in this one via the internet. That might seem a realistic approach, given that the purpose of an interlocutory injunction is to preserve the assets which are the subject of the pending trial; but it overlooks the fact that removing the injunction would result in a veritable tsunami of new and far more blatant publicity which would completely destroy the privacy which PJS and his family must still enjoy to a large extent in this country, and would result in the story being blazoned on the front pages of every tabloid on display in every corner shop.

Yet if the identity of PJS was already so widely known as to render the injunction futile, what possible benefit could be gained or public interest served by its publication by the defendants? In a sense, their public interest argument and futility arguments cancelled each other out.

And so it could be argued that the Supreme Court (by a majority) proved itself a more effective regulator of the press than any of the so-called regulators set up for that purpose. But that’s another story.

For background and comment:

R (British American Tobacco (UK) Ltd and others) v Secretary Of State For Health [2016] EWHC 1169 (Admin)

And so to Mr Justice Green, whose ruling against the smoke-makers (with fire) endorsed the idea that personal inhalable bonfire sticks (aka cigarettes) should be sold in packaging that, while it cannot really be described as plain (being garnished with lurid images of cellular decay and carcinoid pathology), would still be unbranded and commercially unalluring.

Green J rejected a claim by various tobacco companies for judicial review of the Secretary of State’s decision to make the The Standardised Packaging of Tobacco Products Regulations 2015 (SI 2015/829), which appear to have come into force on 20 May, the day after the High Court’s judgment.

For early analysis of the 386-page decision from an intellectual property point of view, see Annsley Merelle Ward, on the IPKat blog, BREAKING: Mr Justice Green rejects judicial review challenge to UK’s tobacco plain packaging law

In his summary (published separately) of the decision, Green J sums it up as follows:

When one stands back from the immense detail of these [JR] challenges, as the Secretary of State submitted during the hearings, the essence of the case is about whether it is lawful for States to prevent the tobacco industry from continuing to make profits by using their trade marks and other rights to further what the World Health Organisation describes as a health crisis of epidemic proportions and which imposes an immense clean‐up cost on the public purse.

The smoke-makers (or some of them) have vowed to appeal.

 

Intellectual Property

1. “Deep Purple” Trade Mark

depp purpole

Deep people

We love a bit of IP news on this blog and this brings another of those musical offerings from between a rock (band) and a hard case.

The band in question is Deep Purple, formed in 1968 and still going strong, albeit with very many personnel changes. A former member, guitarist Ritchie Blackmore, applied on 26 April 2013 to register as a Community Trade Mark the word mark “Deep Purple” in respect of goods and services in classes 9 (Audio/video recordings of musical performances, etc), 25 (Clothing, footwear, headgear)  and 41 (Entertainment services, such as musical performances). These are obvious classes of goods or services for the rock biz, with merchandising and concerts now the major money-spinners and recordings rather less so than before.

The application was objected to by another band member, drummer Ian Paice, who is apparently the only original member still in the band. The Opposition Division of the gloriously named Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) upheld the application for class 25 and part of class 9 but otherwise rejected it. Both sides appealed. Last month the Fifth Board of Appeal gave its ruling, which has come to our attention thanks to the excellent and indispensable IPKat blog.

As their correspondent, Emma Perot, explains, the Board had two main issues to determine:

  1. Was the goodwill that the opponent claimed to have in the mark substantiated before the time limit for material to be submitted? (the Board found that the opponent did indeed have goodwill in the mark ‘Deep Purple’.)
  2. Would the use of the mark by the applicant amount to passing off? (“Yes”,  it was decided,  use would amount to passing off if with respect to some of the contested goods in class 9 and all goods in class 25. In respect of other class 9 goods, mainly related to computer accessories such as mouse mats, software etc, the applicant was allowed to keep his registration.)

All of which may seem like just another day in the music biz. What’s remarkable, as IPKat points out in its headline (Ex Deep Purple member rocks up 20 years later to register band name as trade mark), is the way so many bands from what might be called the Jurassic era of beat combo glory, fissiparous as they are, have taken so long to wake up to (often competing) IP rights and claims. Such delays are not always fatal, however. Readers may recall the way Procol Harum’s former organist, Matthew Fisher, put in a claim against band leader and singer (and pianist) Gary Brooker for a slice of the compositional copyright in the hit song Whiter Shade of Pale – a claim that went all the way to the House of Lords in 2009 (defeating a defence of laches, incidentally, despite the 40-year delay) (see, on this blog, Where There’s A Hit, There’s a Writ.) 

Today’s musicians, such as the ever vigilant Taylor Swift, are rather more alert to the protection of their intellectual property. I hesitate to make the suggestion, but as famous as Deep Purple may be for songs such as “Smoke on the Water”, “Child in Time” and (my personal favourite) “Highway Star’”, maybe the most relevant song for present purposes is that anthem to indolence from their Machine Head album, “Lazy”.

 

Deep-Purple-The-Battle-Rages-On

The battle rages on…  in the Board of Appeal of OHIM

 

 

2. IP Unjustified Threats Bill

As indicated in the Queen’s Speech, the government has now published its Intellectual Property Unjustified Threats Bill.
According to an announcement by the Intellectual Property Office (IPO), the bill is supposed to

provide greater clarity for right holders and third parties that become involved in IP disputes” and “help create an IP environment that favours negotiation and settlement rather than litigation”.

Key elements of the Bill are:

  • providing a clearer framework within which disputing parties and their professional advisers can operate to resolve disputes with a view to avoiding litigation
  • protecting retailers, suppliers and customers against unjustified threats
  • bringing the law for trade marks and designs into line with that for patents by allowing a rights holder to challenge someone who is a primary actor without fear of facing a groundless threats action
  • protecting professional advisers from facing personal legal action for making threats when they act for their clients
  • making the necessary changes to threats law so that the protection against unjustified threats can apply to European patents that will come within the jurisdiction of the Unified Patent Court

This follows a consultation process which you can read about here (via the IPO). 

You can read about the Bill itself here (via Parliament)

For initial commentary on the proposals, see the IPKat blog (Unjustified threats to sue for IP infringement: a bit of British patching up, but more remains to be done) which concludes:

Says this Kat, the current law is a dreadful mess and anything that can be done to make it more consistent, and indeed intelligible, is to be welcomed. It is however sad that businesses, IP owners and their professional advisers must work in an environment in which so much European substantive IP law has been harmonised — especially with regard to registered rights — but the extent to which threats to sue may or may not be made within Europe remains inconsistent and the opportunity to consider the impact of unwarranted threats to sue upon the operation of the single European market was not seized.

Law (and injustice) around the world

Bangladesh

Yet another secular writer slain

This item comes via the Literary Review, whose Silenced Voices column written by Lucy Popescu provides a monthly record of the various ways in which writers around the world are oppressed and imprisoned or, in this case, left unprotected against the random lethal violence of religious extremists in places like Bangladesh.

The May issue carries the dreadful story of Nazimuddin Samad, a 28-year-old law student and blogger, who last month was attacked with machetes at a busy intersection in Dhaka by three or more as yet unidentified assailants, who also shot him before fleeing the scene on a motorcycle. As Lucy Popescu says:

The murder of writers, journalists and outspoken students in Bangladesh, a majority Muslim country with a significant Hindu minority, continues with apparent impunity. Samad’s death marks the sixth killing of a writer or activist in the country since February 2015. PEN and other lobby groups are calling on the Bangladeshi authorities to do more to protect secular writers and intellectuals.

You can get more details, via PEN, of the appalling string of recent attacks on writers and freethinkers in Bangladesh

 

USA

Bill to enable victims to sue Saudi Arabia over 9/11 attacks

The US Senate this week passed The Justice Against Sponsors of Terrorism Act (JASTA) that would allow families of the victims of the 9/11 terror attacks to sue Saudi Arabia’s government for damages. This is based on the idea that the Kingdom itself must have had some responsibility for allowing the attacks to take place. Fifteen of the 19 hijackers who carried out the attacks were Saudi citizens.

A US commission established in the aftermath of the attacks concluded there was no evidence of official Saudi connivance. However, the White House has been under pressure to declassify a 28-page section of the report that was never published on the grounds of national security. 

Attempts to bring actions on behalf of victims have so far foundered in the courts. Last year, US District Judge George Daniels in Manhattan, New York, dismissed claims against Saudi Arabia, saying it had sovereign immunity from damages claims by families of nearly 3,000 people killed in the attacks, and from insurers that covered losses suffered by building owners and businesses. 

The purpose of JASTA would be to circumvent the existing law of sovereign immunity in certain circumstances. If the bill becomes law, it would remove the sovereign immunity, preventing lawsuits against governments, for countries found to be involved in terrorist attacks on US soil. However, the Senate ruling is not enough to get it into law. It must next be taken up by the US House of Representatives where no vote has yet been scheduled. And President Obama has said he will veto it. 

Unsurprisingly the Kingdom of Saudi Arabia objects to the idea of being sued and continues to rely on sovereign immunity, which might not be the best approach from a public relations point of view. No doubt it also avers that it has no case answer in respect of liability for the funding or activities of some of its citizens.

Sources:

That’s it for now. My thanks to all who led me to stories, mostly my followees on Twitter.

This post was written by Paul Magrath, Head of Product Development and Online Content at ICLR, who also tweets as @maggotlaw. It does not necessarily represent the opinions of ICLR as an organisation. Comments welcome on Twitter @TheICLR.